Comment: The lesser included offense tables were compiled using a computer program that compared encoded elements of offenses to determine whether they met the statutory definition of "lesser included offense" codified in CPL 1.20(37) and embodied in the first branch of the two part test set forth in People v Glover, 56 NY2d 427. That is, that an offense is by definition a legal "lesser included offense" if it is "impossible" to commit the greater crime "without concomitantly commititting, by the same conduct", the lesser offense. Where sexual misconduct is committed and the lack of consent to intercourse arises from "forcible compulsion" (PL 130.05(2)(a)), the elements of the offense are identical to the elements of rape in the first degree (PL 130.35(1)) and thus, both the statutory definition and the first branch of the Glover test are satisfied. As set forth on an explanatory page in GungaWeb, this is the program's criterion for inclusion of an offense in the lesser included offense table.

The second branch of the two-part Glover test, necessary to determine whether a particular defendant is entitled to a jury charge on an offense which the first branch of the test has already determined to be a legal lesser included offense, is whether "there is a reasonable view of the evidence in the particular case that would support a finding that he committed the lesser offense but not the greater" (57 NY2d 61). This test also arises from statute (CPL 300.50(1)) and ordinarily depends on a case by case analysis of the evidence.

Language contained in the Third Department cases of People v Maxwell (260 AD2d 653), People v Sims (58 AD2d 720, 721) and People v Cole (212 AD2d 822) states that sexual misconduct by forcible compulsion is not a legal lesser included offense of forcible rape or sodomy. However, I believe that the conclusion actually supported by analysis of these cases is not that "sexual misconduct is not a lesser included offense of rape", but rather that as a matter of law because of the identity of elements, there could never be a case in which a "reasonable view of the evidence" would support a finding the defendant had committed sexual misconduct but not rape, and therefore there could never be a case in which a defendant, charged with forcible rape (or sodomy) would be entitled to a jury charge with respect to the legal lesser included offense of sexual misconduct. This is the same conclusion reached by the Fourth Department in People v Blackwell, 177 AD2d 952.

Under this reasoning, it would be correct to consider sexual misconduct a legal lesser included offense of forcible rape or sodomy under CPL 1.20(37), but one that as a matter of law could never be submitted to a jury under CPL 300.50 as an alternative charge. It would then remain a lesser included offense for purposes of plea, but of course such a plea would violate current plea bargaining restrictions (CPL 220.10(5)(d)(ii)). However, since I have found no appellate case where it has been held that sexual misconduct should be considered a lesser included offense of forcible rape or sodomy, I am considering amending the lesser included offense tables for Penal Law Article 130 in GungaWeb, and I invite further comment from users on the issue.

David E. Woodin, Esq. 8/1/2000